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Testatrix left surviving her hus- NEGLIGENCE. EVIDENCE. band and an only daughter, the

N.Y. SUPREME COURT. GENERAL said Minna, now Mrs. Van Zandt,

TERM. FIRST DEPT. the appellant. The legacies were all paid, and Mis. Van Zandt was

Frederick P. Reed, respt., v. in possession of the farm when the The Mayor, &c., of the city of premises were taken and the New York, applt. money paid.

Decided Dec. 21, 1883. M. H. McMath, for applt.

In an action against the Mayor, &c., of New C. J. Bissell, for respts.

York city to enforce a claim for damages Held, That by the terms of the

for negligence in allowing snow and ice to

accumulate and remain on the sidewalk, will Minna Van Zandt took only a

the plaintiff, having fixed the amount of bis life estate in the lands of testa

claim in his preliminary demand to the trix. Therefore she can only enjoy comptroller, will not at the trial be allowed the use of the lands or the money,

to increase his demand by amendment of which is a substitute for the land

complaint.

In such an action evidence of the length and acquired by the railroad company.

area of the sidewalks of the city under its 13 N. Y., 285. There was only a care and of ordinances of the common conditional fee in Minna upon

council requiring owners of premises to which there is a valid executory

clean sidewalks in front of their premises,

and affixing penalty for failure, and of the devise over upon the failure of the

obstructions the city has to meet with in condition. If Mrs. Van Zandt shall its supervisory care of the streets, is comdie without leaving her surviving

petent. issue the land must pass, accord- Appeal from judgment entered ing to the terms of the will, to on verdict. tlie persons next entitled by the

Action to recover damages for terms of the will. 26 Barb., 117. defendant's negligence in allowing We think the words carrying the ice and snow to accumulate and lands over in the event of the remain on the sidewalk, by reason death of Minna without issue are whereof plaintiff suffered great clear and express, and should re injury. At the trial the court ceive effect. They cut down the permitted plaintiff to increase the estate, which otherwise would be amount of his demand for judg given to her. 81 N. Y., 359. ment from $5,000 to $10,000 against

Construing all the language objection. found in the will, it is evident that

Charles Blandy, for applt. testatrix did not intend to devise

Charles P. Miller, for respt. a fee absolute to her daughter. Held, That the court should not 17 Hun, 217.

have permitted plaintiff to increase Order affirmed, with $10 costs his claim for damages by amendand disbursements payable out of ment; that he should have been the income of the fund.

required to stand upon his claim Opinion by Hardin, J.; Smith, as he had previously presented it P. J., and Barker, J., concur.

to the comptroller under $ 105, Chap. 335, Laws of 1873; 26 Hun,

120; unreported opinion of Daly,

ASSAULT. Ch. J., in Harriman v. The Mayor.

N. Y. SUPREME COURT. GENERAL But inasmuch as the judgment

TERM. THIRD DEPT. was only for $5,000 and defendant cannot be said to have been pre- The People, respts., v. William judiced by the amendment de. H. Hale, applt. fendant can have no benefit from

Decided Nov., 1883. its exception.

Held further, That upon the To constitute the crime of assault and battery question of defendant's careless- the assault must have been made with a

criminal or vicious intent. ness it was error to exclude evi

A verdict that the prisoner was guilty of an dence as to the length and area of assault, but not guilty of a criminal assault the sidewalks of which defendant or ivtent to injure is practically a verdict had supervision; it was also error

of acquittal and it is error for the court to

refuse to entertain it. to exclude the ordinance of the city requiring owners of premises Appeal from judgment of Court to clean the walks in front of their | of Sessions, affirming judgment of premises.

police court convicting appellant The court also erred in its re- of the crime of assault, and senfusal to charge the following re- tencing him to pay a fine of $30 quest: “What is a reasonable or in default thereof be committed time, and what is a reasonably to jail at hard labor for sixty safe condition of the sidewalk is days. for the jury to determine, and The act complained of was the must be determined from a reason taking hold of the arm of a young able standpoint, and in view of the lady, Miss D., while she was walkdifficulties and obstructions the ing in the street with others. Decity has at all times to meet, and fendant and Miss D. were acalso in view of the extended terri- quaintances and at the time held tory of streets, roads and side- friendly relations with each other. walks, and the fact that in some The complaint was not made until sections of the city public travel four months afterward. required more speedy attention Miss D. and one C., who was than others, and the possible large walking with her and who was not number of similar dangers requir- on friendly terms with defendant, ing attention, and also in view of testified that defendant violently the facilities at its disposal for re- seized hold of her arm, whereas moving obstructions." Defendant two others who were present teswas entitled to the request with tified only that they saw him take out modification.

hold of her arm. Defendant tesJudgment reversed, new trial tified that “it was not with the inordered, costs to abide event. tent to assault or insult her."

Opinion by Daniels, J.; Davis, The jury returned a verdict P.J., concurs.

" that while we find the prisoner guilty of assault, we do not deem

him guilty of a criminal assault or be committed with criminal intent. intent to injure.” The court re- An assault without such intent fused to entertain the verdict and does not constitute a crime. There directed the jury to retire, which must be vicious intention and they accordingly did and returned criminal design. See 1 Hill, 351. with a verdict of guilty and a The jury found and so rendered recommendation to mercy, where their verdict that defendant was not upon the judgment in question guilty in this regard ; that the act was pronounced.

complained of was not a criminal William H. Hale, applt. in act, did not involve any element person.

essential to crime. They had a Lewis E. Griffith, for respts. right to find, if they deemed the

Held, Error; that the first ver- facts proved to justify the finding, dict was in legal effect a verdict of that the taking hold of a person's acquittal and should have been arm in the confidence of existing accepted as final. The jury had a friendship, trusting to a license right to conclude, especially in acquired by a supposed mutual view of the former friendly rela- kind feeling, doing no injury, with tions which had existed between no intent to do a wrong by insult defendant and Miss D., that de or otherwise, is not a criminal act; fendant simply took hold of her such an act is an innocent one, in arm with “no intent to assault or the sense that it does not constiinsult her,” and the jury did so tute a crime. find that the taking hold of Miss Judgment reversed and defendD.'s arm was not a “criminal as- ant discharged. sault” or with "intent to injure.' Opinion hy Bockes, J.;Learned, The jury found defendant not P. J., concurs ; Boardman, J., guilty of a criminal assanlt; that concurs in result. is, they found that defendant took hold of Miss D.'s arm, but with RAILROADS. FENCES. no criminal intent. This was good N. Y. SUPREME COURT. GENERAL as a special verdict, which need

TERM. SECOND DEPT. not be in any particular form, so be it that it presents intelligently N. Y.,L. E. & W. RR. Co., respt.

Henry D. Knight, applt., v. The the facts found by the jury. Code Civ. Pro., § 440. It was not an

Decided Sept., 1883. imperfect or defective verdict, but | The liability of a railroad company for damcovered the entire case ; nor did it

ages to cattle, etc., resulting from defect

ive fences is not limited to injuries caused contain any suggestion of mis

by its agents or engines, but attaches to all take.

cases where cattle, etc., escape on the track People v. Bush, 3 Park, 552 ; through a defective fence, irrespective of Nelson v. People, 5 id., 39, and

the manner in which they receive injury. People v. Graves, id., 134, do not Appeal from order setting apply.

aside verdict and granting new To make the act criminal it must trial.

Action to recover damages for sions on the railroad track which the loss of plaintiff's horse.

might result in loss of life to perIt appeared that the horse passed sons

sons traveling on the railroad upon defendant's track where a their liability should attach in all length of fence was down, and ran cases where cattle escape on the on to a bridge, where its feet went track through defective fences between the timbers, its legs were irrespective of the manner in which broken and it was necessarily de- they receive injury.

they receive injury. No negative stroyed.

words are employed to show the The court directed a verdict for intention of the legislature that plaintiff, bụt afterwards set it the corporation should be liable aside on motion on the minutes for injuries in no other cases than and granted a new trial.

those enumerated in the statute T. J. & J. W. Lyon, for applt.

and if it had been intended that L. E. Carr, for respt.

their liability should have that Held, Error ; that this case extent and no more

some indicashould be held to be within the tion of that kind would be found statute. The statute lays an in- in the language of the law. In junction on railroad corporations any view the beneficent purpose to erect and maintain fences on the of this statute will be best accomsides of their road in clear and plished by holding this and similar unqualified terms, and it has been cases to be within its scope and steadily maintained by the courts meaning. Any other construction of this state that the duty so would be too narrow and tend to imposed was public and that the deprive the law of its great usefulenactment of the statute induced by public considerations. Again, if the object of this law The purpose of the law was to was in part to protect the owners protect the traveling public and of domestic animals along the the owners of domestic animals, lines of railroads why should such and it has received a wide and protection be restricted to cases liberal construction.

where they are destroyed in a cerAfter imposing this public duty tain way? If it be answered that on these corporations the statute it is so nominated in the law, the proceeds to declare that for a fail. reply is that the statute does not ure of compliance they shall be profess to enumerate all the inliable for all damages which shall stances of liability resulting from be done by their agents or engines its violation. to cattle and horses. Does this If this horse had been killed by measure their liability or does it a car running by force of gravity simply declare some of the con- on a descending grade, detached sequences of their omission ? Cer: from an engine, the corporation tainly no reason exists for such would be liable, and yet the case limitation of liability. If this would not be within the words of law was enacted to prevent intru. I the statute.

was

ness.

cur.

or the

Order reversed, with costs; mo- closure of a second mortgage, and tion for new trial denied and judg- became vested in Anna C., who ment ordered on verdict.

was then the owner ; but this fact Opinion by Dykman, J.; Bar. was not known to plaintiff, denard, P. J., and Pratt, J., con- fendant or the agents, and no rep

resentation or request of any kind

respecting the property or policy FIRE INSURANCE. MISTAKE. was made to defendant

agents by any person. N. Y. SUPREME COURT. GENERAL

The property was destroyed by TERM. SECOND DEPT.

fire, June 25, 1881, and the loss has The Poughkeepsie Savings Bk., been adjusted at $930. respt., v. The Manhattan Fire Ins. The trial court found that the Co. et al., applts.

policy constituted an agreement Decided Sept., 1883.

by defendant to insure the house

described, and that the mistake Where an error in the name of the owner of made by its agents in naming the the property is caused by the mistake of

owner was not caused by any the insurance agent and not through any fraud or inisrepresentation of the assured fraud or inisrepresentation ; that there is no breach of warranty, and the by the payment and acceptance insurer is liable on the contract actually of the premiums the owner acmade.

quired the right to the benefit of Appeal from judgment for plain the insurance and that the policy tiff.

was valid as to plaintiff and the Action on a policy of fire insur- owner and gave judgment for ance, One C., in 1869, executed a plaintiff. bond and mortgage for $800, which Butler, Stillman & Hubbard, for came to plaintiff by regular assign- applts. ment and which remains unpaid. R. E. Taylor, for respt. C. procured from the Connecticut Held, No error. The policy Ins. Co. a policy on the premises was delivered and the premiums to plaintiff as collateral to the received with full purpose of inmortgage, and plaintiff procured suring the building and there was renewals thereof through the no fraud or misrepresentation. agents at Kingston until 1879. Clearly the error of the agents At that time the agents were the cannot be set up by the company agents of defendant, and had as a breach of warranty, and the ceased to be agents of the Con- policy of insurance should be apnecticut Co., and forwarded to | plied to the subject and interest plaintift the policy in suit, similar intended to be covered. 19 N. Y., to the former one, and C. paid the 182. The just rule on the subject premium.

now is that where a mistake is the Previous to the issuance of this fault of the agent the insurer is policy the title of the property bound to respond on the contract had been changed by the fore- I actually made. 36 N. Y., 550.

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